Freedom of the Seas

Absence of national rights is the foundation of all claims of freedom to fish on the high seas. Recent doctrines and principles are stated, not as contradictions but merely as modifications to this fundamental freedom. For example, Article I of the Geneva Convention on Fishing and Conservation of the Living Resources of the High Seas begins: "All States have the right to engage in fishing on the high seas, subject to ..."

Early in the 17th Century, the legal approach to property sustained the argument that the seas could belong to no one. Things could become property only if they could be appropriated or prescribed. Applied to nations, lands must be capable of being held against other states. This, it was argued, could be said only of a narrow coastal strip (the territorial sea), not of the high seas, which no navy could be powerful enough to hold in the sense that an army could hold national territory. A second condition was that things should be property if they could be exhausted, but it was considered that this did not apply to the high seas because their wealth seemed to be inexhaustible.

However, there is doubt that the oceans are inappropriable, and there is much more doubt that the ocean fisheries are inexhaustible. While it may be impossible to destroy some species of fish by today's fishing methods, it is possible to deplete a species; and it is certainly becoming possible to raise the productivity of the seas by means analogous to those which have justified private property on land.

With respect to fishing, this freedom to participate means that there is no single body or agency that can limit the amount of effort applied to the production of the resource. Under these conditions (quite different from those of a private enterprise or a state-controlled system), fishermen will be attracted to the resource as long as there is any profit to be shared. Thus, freedom of the seas becomes the freedom to waste capital and labor, for the resource will attract excessive investment in new vessels and excessive recruitment of fishermen. Consequently, it is not surprising that to many people the freedom of the seas, no longer based on unassailable assumptions, is something less than an article of faith.

Because it is based on absence of national jurisdiction, freedom of the seas can only be negative in its approach. In this respect, it must be sharply distinguished from recent proposals to "internationalize" the exploitation of the sea. Both the "freedom" and "internationalization" approaches stress the invalidity of national claims. But the latter might justly be called a positive approach, implying cooperative use by many nations, while the former is negative, stressing only that nations are powerless to interfere with each other.